<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
HICKOK INCORPORATED
(Exact Name of Registrant as Specified in its Charter)
Ohio 34-0288470
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
10514 Dupont Avenue, Cleveland, Ohio 44108 (216) 541-8060
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
Hickok Incorporated 1997 Outside Directors Stock Option Plan
Hickok Incorporated 1995 Outside Directors Stock Option
Plan
Hickok Incorporated 1997 Key Employees Stock Option Plan
Hickok Incorporated 1995 Key Employees Stock Option Plan
(FULL TITLES OF THE PLANS)
Robert L. Bauman
Chairman, President and Chief Executive Officer
Hickok Incorporated
10514 Dupont Avenue
Cleveland, Ohio 44108
(216) 541-8060
Copy to:
Michael L. Miller, Esq.
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
(216) 622-8200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed
Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Offering
Registered Registered Per Share (1) Price (1) Amount of Registration Fee
- --------------------------------- ----------------- ---------------- ------------------------- -----------------------------
<S> <C> <C> <C> <C>
Class A Common Shares, $1.00
par value per share, issuable
upon exercise of options 191,000 (2) $8.375 $1,599,625 $472
============================================================================================================================
<FN>
(1) Estimated in accordance with Rule 457(c) solely for the purpose of calculating the registration fee and based upon
the average of the high and low prices as quoted on The Nasdaq Stock Market for September 14, 1998.
(2) Of the 191,000 Class A Common Shares being registered, an aggregate of (i) 21,000 shares are issuable upon exercise
of options granted pursuant to the Hickok Incorporated 1997 Outside Directors Stock Option Plan, (ii) 70,000 shares
are issuable upon exercise of options granted pursuant to the Hickok Incorporated 1997 Key Employees Stock Option,
(iii) 30,000 shares are issuable upon exercise of options granted pursuant to the Hickok Incorporated 1995 Outside
Directors Stock Option Plan, and (iv) 70,000 shares are issuable upon exercise of options granted pursuant to the
Hickok Incorporated 1995 Key Employees Stock Option Plan.
</FN>
</TABLE>
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of Hickok Incorporated (the "Company"),
previously filed with the Securities and Exchange Commission, are incorporated
herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended September 30, 1997;
2. The Company's Quarterly Reports on Form 10-Q for the periods
ended December 31, 1997, March 31, 1998 and June 30, 1998;
3. The Company's Current Report on Form 8-K, dated February 17,
1998; and
4. The Company's Form 8-A (Reg. No. 147).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be a part hereof from the date of
filing of such documents, other than the portions of such documents which by
statute, by designation in such document or otherwise, are not deemed to be
filed with the Commission or are not required to be incorporated herein by
reference.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
subsequently filed document that also is, or is deemed to be, incorporated by
reference in this Registration Statement modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Michael L. Miller, a partner of Calfee, Halter & Griswold LLP, is the
Company's Secretary and a Director of the Company, and as of August 31, 1998
beneficially owned 9,000 Common Shares, including 4,000 Common Shares which he
has the right to acquire within 60 days after August 31, 1998 through the
exercise of stock options.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Ohio Revised Code sec.1701.13(E) provides that a corporation may
indemnify or agree to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action, by
reason of the fact that he or she is or was a Director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
in a similar capacity with another corporation or enterprise, against expenses
actually incurred by such person in connection with an action if he or she acted
in good faith and in a manner not opposed to the best interests of the
corporation.
Article IV of the Company's Amended Code of Regulations provides for
the indemnification of Directors and officers against certain liabilities.
II-2
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See the Exhibit Index at Page E-1 of this Registration Statement.
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement;
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represents a
fundamental change in the information set forth
in the registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Company pursuant
to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered therein,
and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 that is
incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement
relating to the securities offered herein, and the
offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to
Directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions
described under Item 6 above, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such
II-3
<PAGE> 4
indemnification is against public policy as expressed in
the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid
by a Director, officer or controlling person of the
Registrant in the successful defense of any action, suit
or proceeding) is asserted against the Registrant by
such Director, officer or controlling person in
connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933
and will be governed by the final adjudication of such
issue.
II-4
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on September 16, 1998.
HICKOK INCORPORATED
By: /s/ Robert L. Bauman
--------------------------------------
Robert L. Bauman, Chairman, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on September 16, 1998.
<TABLE>
<S> <C>
/s/ Robert L. Bauman
- ------------------------------ Chairman, President and Chief Executive Officer
Robert L. Bauman (Principal Executive Officer)
/s/ Eugene T. Nowakowski
- ------------------------------ Chief Financial Officer (Principal Accounting and
Eugene T. Nowakowski Financial Officer)
/s/ Thomas H. Barton
- ------------------------------ Director
Thomas H. Barton
/s/ Harry J. Fallon
- ------------------------------ Director
Harry J. Fallon
/s/ T. Harold Hudson
- ------------------------------ Director
T. Harold Hudson
/s/ George S. Lockwood, Jr.
- ------------------------------ Director
George S. Lockwood, Jr.
/s/ Michael L. Miller
- ------------------------------ Director
Michael L. Miller
/s/ Janet H. Slade
- ------------------------------ Director
Janet H. Slade
</TABLE>
II-5
<PAGE> 6
HICKOK INCORPORATED
EXHIBIT INDEX
-------------
Exhibit No. Exhibit Description
----------- -------------------
4.1 Articles of Incorporation and Code of Regulations. (A)
4.2 Amendment to Articles of Incorporation (incorporated herein by
reference to the appropriate exhibit to the Company's Annual
Report on Form 10-K for the fiscal year ended September 30,
1995).
4.3 1997 Outside Directors Stock Option Plan.
4.4 1997 Key Employees Stock Option Plan.
4.5 1995 Outside Directors Stock Option Plan.
4.6 1995 Key Employees Stock Option Plan.
5.1 Opinion of Calfee, Halter & Griswold LLP as to the validity of
the securities being registered.
23.1 Consent of Meaden & Moore, Ltd.
23.2 Consent of Calfee, Halter & Griswold LLP (included in Exhibit
5.1 of this Registration Statement).
- ------------------
(A) Reference is made to the Company's basic documents filed as Exhibits
3(a) and 3(b) to the Company's Registration Statement on Form S-1,
dated September 1, 1959, as supplemented by Amendments 1 and 2 thereto,
dated respectively October 15, 1959, and October 19, 1959 (the October
15, 1959 amendment containing an Amendment to Articles of
Incorporation, dated September 29, 1959) and such exhibits are hereby
incorporated by reference herein.
E-1
<PAGE> 1
Exhibit 4.3
HICKOK INCORPORATED
1997 OUTSIDE DIRECTORS STOCK OPTION PLAN
ARTICLE 1. DEFINITIONS
Whenever used in the Plan, the following terms have the meanings
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" shall be deemed to have occurred upon:
(i) The acquisition of beneficial ownership of thirty
percent (30%) of the Company's Shares by a person or group of persons
under common control unless such acquisition is approved by the Board;
or
(ii) A change in the membership of the Board at any time
during any twelve (12) month period such that, following such change,
at least thirty percent (30%) of the members of the Board were not
members of the Board at the start of such twelve (12) month period but
only if the election of such new members of the Board was not approved
by at least three-quarters (3/4) of the Directors who were either
sitting at the beginning of such twelve (12) month period or elected
to the Board during such twelve (12) month period with the approval of
three-quarters (3/4) of the Directors who were sitting at the
beginning of such twelve (12) month period.
(c) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "Company" means Hickok Incorporated, an Ohio corporation, or
any successor thereto.
(e) "Director" means a member of the Board.
(f) "Disability" means a Participant's inability, due to a
physical or mental condition, to continue to serve as a member of the Board, as
determined by the Board pursuant to written certification of such Disability
from a physician acceptable to the Board.
(g) "Effective Date" means February 25, 1998, subject to
ratification by an affirmative vote of a majority of the voting capital stock of
the Company.
(h) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor thereto.
<PAGE> 2
(i) "Fair Market Value" means (a) if the Shares are listed on a
nationally recognized stock exchange or the NASDAQ Stock Market, the closing
price of the Shares on the date the fair market value of the Shares is being
determined, or, if no sale has occurred on such date, on the most recent
preceding day on which there is a closing price of the Shares, or (b) in all
other circumstances, the value determined by the Board after obtaining an
appraisal by one or more independent appraisers meeting the requirements of
regulations issued under Section 170(a)(1) of the Code.
(j) "Option" means an option to purchase Shares granted under
Article 4 herein.
(k) "Option Agreement" means an agreement, in the form of Exhibit
A attached hereto, setting forth the terms and provisions applicable to an
Option.
(l) "Option Price" shall be equal to one hundred percent (100%) of
the Fair Market Value of a Share at the close of the date the Option is granted.
(m) "Outside Director" means a Director who is not employed by the
Company or a Subsidiary.
(n) "Participant" means an Outside Director who has been granted
an Option.
(o) "Plan" means the Hickok Incorporated 1997 Outside Directors
Stock Option Plan.
(p) "Shares" means the Class A Common Shares, $1.00 par value, of
the Company.
(q) "Subsidiary" means any corporation, at least fifty percent
(50%) of the common stock of which is owned directly or indirectly by the
Company.
ARTICLE 2. ESTABLISHMENT, PURPOSE AND DURATION
2.1 ESTABLISHMENT OF THE PLAN. The Company hereby establishes
the Plan as set forth herein.
2.2 PURPOSE OF THE PLAN. The purpose of the Plan is to provide
the Outside Directors with greater incentive to serve and promote the
interests of the Company and its shareholders. The premise of the Plan is
that, if such Outside Directors acquire a proprietary interest in the Company
or increase such proprietary interest as they may already hold, then the
incentive of such Outside Directors to work toward the Company's continued
success will be commensurately increased. Accordingly, the Company will, from
time to time during the
<PAGE> 3
effective period of the Plan, grant to the Outside Directors Options on the
terms and subject to the conditions set forth in the Plan.
2.3 DURATION OF THE PLAN. The Plan shall commence on the
Effective Date and shall remain in effect until February 25, 2000.
ARTICLE 3. SHARES SUBJECT TO THE PLAN
3.1 NUMBER OF SHARES. The total number of Shares available
for grant under the Plan shall be Twenty-One Thousand (21,000). These Shares
may be either authorized but unissued, treasury Shares or reacquired Shares.
The grant of an Option shall reduce the Shares available for grant under the
Plan by the number of Shares subject to such Option. To the extent that an
Option is settled in cash rather than in Shares, the authorized Share pool
shall be reduced by the appropriate number of Shares represented by the cash
settlement of the Option, as determined by the Board (subject to the
limitation set forth in Section 3.2 herein).
3.2 LAPSED OPTIONS. If any Option granted under this Plan is
canceled, terminates, expires or lapses for any reason, any Shares subject to
such Option again shall be available for the grant of an Option under the
Plan. However, in the event that prior to the Option's cancellation,
termination, expiration, or lapse, the holder of the Option at any time
received one or more "benefits of ownership" pursuant to such Option (as
defined by the Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the Shares
subject to such Option shall not be made available for regrant under the Plan.
3.3 ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, share split, share dividend, split-up, share combination, or other
change in the corporate structure of the Company, the Board, in its sole
discretion, shall make such adjustments as are necessary and appropriate in the
exercise prices, number of Shares issuable upon exercise and/or the class of
Shares issuable upon exercise of all then outstanding Options, to prevent
dilution or enlargement of rights of the holders of Options under the Plan; and
provided that the number of Shares attributable to any Option shall always be a
whole number.
ARTICLE 4. GRANT OF OPTIONS
4.1 GRANT OF OPTIONS TO OUTSIDE DIRECTORS. On the Effective
Date each Outside Director shall be granted an Option to purchase One Thousand
(1,000) Shares at the Option Price. On each anniversary of the Effective Date,
through and including February 25, 2000, each Outside Director shall be
granted an Option to purchase One Thousand (1,000) Shares at the Option Price.
Each Option shall be exercisable in equal one-third increments, beginning on
the first anniversary of the date of grant. The terms of each such Option
shall be
<PAGE> 4
set forth in an Option Agreement which shall be executed by the Outside
Director and the Company.
4.2 DURATION OF OPTIONS. Subject to the provisions contained
herein relating to earlier expiration, each Option shall expire on the tenth
(10th) anniversary date of its grant.
4.3 EXERCISE OF OPTIONS. Options granted under the Plan shall
be exercisable as follows:
Options shall be exercised by the delivery of a written notice
of exercise to the Company, setting forth the number of Shares with respect to
which the Option is to be exercised, accompanied by full payment for the Shares.
4.4 PAYMENT. The Option Price upon exercise of any Option
shall be payable to the Company in full in cash or its equivalent. The Board
also may allow cashless exercises as permitted under Federal Reserve Board's
Regulation T, subject to applicable securities law restrictions, or by any other
means which the Board determines to be consistent with the Plan's purpose and
applicable law.
As soon as practicable after receipt of a written notification
of exercise and full payment, except in the case of a cashless exercise, the
Company shall deliver to the Participant, in the Participant's name, Share
certificates in an appropriate amount based upon the number of Shares purchased
under the Option(s).
4.5 RESTRICTIONS ON SHARE TRANSFERABILITY. The Board may
impose such restrictions on any Shares acquired pursuant to the exercise of an
Option under the Plan as shall be required under applicable Federal securities
laws, under the requirements of any stock exchange or market upon which such
Shares are then listed and/or traded and under any blue sky or state securities
laws applicable to such Shares.
4.6 CEASING TO BE A DIRECTOR DUE TO DEATH OR DISABILITY.
(a) DEATH. In the event a Participant ceases to be a
Director by reason of death, all vested Options held by the Participant shall
remain exercisable at any time prior to their expiration date, or for one (1)
year after the date of death, whichever period is shorter, by such person or
persons as shall have been named as the Participant's beneficiary, or by such
persons that have acquired the Participant's rights under the Option by will
or by the laws of descent and distribution.
(b) DISABILITY. In the event a Participant ceases to be a
Director by reason of Disability, all vested Options held by the Participant
shall remain exercisable at any time prior to their expiration date, or for
one (1) year after the date that the Board determines the definition of
Disability to have been satisfied, whichever period is shorter.
<PAGE> 5
(c) DEATH AFTER CEASING TO BE A DIRECTOR. In the event
that a Participant ceases to be a Director by reason of Disability, and within
the exercise period following such termination the Participant dies, then the
remaining exercise period under outstanding Options shall equal the longer of
(i) one (1) year following death; or (ii) the remaining portion of the
exercise period which was triggered by reason of the Director's Disability;
provided, however, the remaining exercise period shall in no event extend
beyond the expiration date of such Options. Such Options shall be exercisable
by such person or persons who shall have been named as the Participant's
beneficiary, or by such persons who have acquired the Participant's rights
under the Option by will or by the laws of descent and distribution.
4.7 CEASING TO BE A DIRECTOR. If a Participant ceases to be a
Director for any reason, all Options held by the Participant which are not
vested as of the date he ceases to be a Director shall immediately be forfeited
to the Company.
Options which are vested as of the date a Participant ceases
to be a Director for any reason other than the reasons set forth in Section 4.6
may be exercised within the period beginning on the date the Participant ceases
to be a Director, and ending sixty (60) days after such date. In the event the
Participant dies within such sixty (60) day period, then any outstanding Options
may be exercised within twelve (12) months after the date of such Participant's
death by such person or persons who shall have been named as such Participant's
beneficiary or by such person who has acquired the Participant's rights under
the Options by will or by the laws of descent and distribution; provided,
however, the remaining exercise period shall in no event extend beyond the
expiration date of such Options.
4.8 NONTRANSFERABILITY OF OPTIONS. No Option may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated by a
Participant or any other person, voluntarily or involuntarily, other than (i) by
will or by the laws of descent and distribution or (ii) pursuant to a Qualified
Domestic Relations Order as provided for in Section 206(d)(3)(B) of the Employee
Retirement Income Security Act of 1974, as amended. Further, a Participant's
rights under the Plan shall be exercisable during the Participant's lifetime
only by the Participant or the Participant's legal representative.
ARTICLE 5. BENEFICIARY DESIGNATION
Each Participant may, from time to time, name any beneficiary
or beneficiaries (who may be named contingently or successively) who will
succeed to the Participant's rights hereunder in the event of the Participant's
death. Each such designation shall revoke all prior designations by the same
Participant, shall be in a form prescribed by the Company, and will be effective
only when filed by the Participant in writing with the Company during the
Participant's lifetime. In the absence of any such designation, benefits
remaining unpaid at the Participant's death shall be paid to the Participant's
estate.
<PAGE> 6
The spouse of a married Participant domiciled in a community
property jurisdiction shall join in any designation of beneficiary or
beneficiaries other than the spouse.
ARTICLE 6. CHANGE IN CONTROL
Upon the occurrence of a Change in Control, unless otherwise
specifically prohibited by the terms of Section 11.5 herein:
(a) Any and all Options granted hereunder shall become
immediately exercisable; and
(b) Subject to Article 7 herein, the Board shall have the
authority to make any modifications to the Options as determined by the Board to
be appropriate before the effective date of the Change in Control.
ARTICLE 7 AMENDMENT, MODIFICATION, AND TERMINATION
7.1 AMENDMENT, MODIFICATION, AND TERMINATION. The Board may
at any time and from time to time, alter, amend, suspend or terminate the Plan
in whole or in part; provided, that the Plan shall not be amended more than
once every six (6) months, other than to conform it to changes in the Code,
the Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder; and provided, further that no amendment which requires shareholder
approval in order for the Plan to continue to comply with Rule 16b-3 under the
Exchange Act, including any successor to such Rule, shall be effective unless
such amendment shall be approved by the requisite vote of shareholders of the
Company entitled to vote thereon.
7.2 OPTIONS PREVIOUSLY GRANTED. No termination, amendment or
modification of the Plan shall adversely affect in any material way any Option
previously granted under the Plan, without the written consent of the
Participant holding such Option.
ARTICLE 8. WITHHOLDING
The Company shall have the power and the right to deduct and
withhold from any other compensation due the Participant from the Company, or
require a Participant to remit to the Company in such form as requested by the
Company, an amount sufficient to satisfy Federal, state, and local taxes
required by law to be withheld with respect to any taxable event arising from or
as a result of this Plan.
<PAGE> 7
ARTICLE 9. INDEMNIFICATION
Each person who is or shall have been a member of the Board
shall be indemnified and held harmless by the Company against and from any loss,
cost, liability, or expense that may be imposed upon or reasonably incurred by
such person in connection with or resulting from any claim, action, suit, or
proceeding to which such person may be a party or in which such person may be
involved by reason of any action taken or failure to act under the Plan and
against and from any and all amounts paid by such person in settlement thereof,
with the Company's approval or paid by such person in satisfaction of any
judgment in any such action, suit, or proceeding against such person, provided
such persons shall give the Company an opportunity, at its own expense, to
handle and defend the same before such person undertakes to handle and defend it
on such person's own behalf. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which such persons may be
entitled under the Company's Articles of Incorporation or Code of Regulations,
as a matter of law, or otherwise, or any power that the Company may have to
indemnify them or hold them harmless.
ARTICLE 10. SUCCESSORS
All obligations of the Company under the Plan with respect to
Options shall be binding on any successor to the company, whether the existence
of such successor is the result of a direct or indirect purchase, merger,
consolidation, or otherwise, of all or substantially all of the business and/or
assets of the Company.
ARTICLE 11. MISCELLANEOUS
11.1 NO RIGHT TO CONTINUE AS A DIRECTOR. Nothing in this Plan
or in any Option Agreement shall confer upon any Outside Director any right to
continue as a Director, or to be entitled to receive any remuneration or
benefits not set forth in the Plan or such Option Agreement, or to interfere
with or limit the right of the shareholders of the Company to remove him or her
as a Director, with or without cause.
11.2 GENDER AND NUMBER. Except where otherwise indicated by
the context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
11.3 SEVERABILITY. In the event any provision of the Plan
shall be held illegal or invalid for any reason, the illegality or invalidity
shall not affect the remaining parts of the Plan, and the Plan shall be
construed and enforced as if the illegal or invalid provision had not been
included.
11.4 REQUIREMENTS OF LAW. The granting of Options and the
issuance of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required.
<PAGE> 8
Notwithstanding any other provision set forth in the Plan, if required by the
then-current Section 16 of the Exchange Act, any "derivative security" or
"equity security" granted pursuant to the Plan to any Outside Director may not
be sold or transferred for at least six (6) months after the date of grant of
such Option. The terms "equity security" and "derivative security" shall have
the meanings ascribed to them in the then-current Rule 16(a) under the
Exchange Act.
11.5 SECURITIES LAW COMPLIANCE. Transactions under this Plan
are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed null and void, to
the extent permitted by law and deemed advisable by the Committee.
11.6 GOVERNING LAW. To the extent not preempted by Federal
law, the Plan, and all agreements hereunder, shall be construed in accordance
with and governed by the laws of the State of Ohio.
11.7 TIME FOR TAKING ACTION. Any action that may be taken in
respect of the Plan within a certain number of days shall be taken within that
number of calendar days; provided, however, that if the last day for taking any
such action falls on a weekend or a holiday, the period during which such action
may be taken shall be extended until the next business day. If any action in
respect of the Plan is required to be taken on a day which falls on a weekend or
a holiday, such action shall be taken on the next business day.
11.8 NONQUALIFIED OPTIONS. All Options granted under the Plan
shall, for purposes of the federal income tax, be nonqualified stock options.
<PAGE> 1
Exhibit 4.4
HICKOK INCORPORATED
1997 KEY EMPLOYEES STOCK OPTION PLAN
Hickok Incorporated hereby adopts a stock option plan for the benefit
of certain persons and subject to the terms and provisions set forth below.
1. DEFINITIONS. The following terms shall have the meanings set forth
below whenever used in this instrument:
(a) The word "Board" shall mean the Board of Directors of
the Company.
(b) The word "Code" shall mean the United States Internal
Revenue Code (Title 26 of the United States Code).
(c) The word "Committee" shall mean the Compensation
Committee appointed by the Board.
(d) The words "Common Shares" shall mean Class A Common
Shares, $1.00 par value, of the Company.
(e) The word "Company" shall mean Hickok Incorporated, an
Ohio corporation, and any successor thereto which shall maintain this
Plan.
(f) The word "Disability" shall mean the Optionee's
inability, due to a physical or mental condition, to perform services
for the Company or any Subsidiary substantially consistent with past
practice, as determined by the Committee pursuant to written
certification of such Disability from a physician acceptable to the
Committee.
(g) The words "Key Employee" shall mean any person who is a
high-level executive officer or other valuable managerial or
technical employee of either the Company or any Subsidiary and who
does not own beneficially ten percent (10%) or more of either the
Class A Common Shares or the Class B Common Shares of the Company.
(h) The word "Optionee" shall mean any Key Employee to whom
a stock option has been granted pursuant to this Plan.
(i) The word "Plan" shall mean this instrument, Hickok
Incorporated 1997 Key Employees Stock Option Plan, as it is
originally adopted and as it may be amended hereafter.
<PAGE> 2
(j) The word "Subsidiary" shall mean any corporation at
least 50% of the common stock of which is owned directly or
indirectly by the Company.
(k) The words "Substantial Shareholder" shall mean any
person who would otherwise be a Key Employee except that such person
owns more than 10% of the total combined voting power of all classes
of stock of either the Company or any Subsidiary. Ownership shall be
determined in accordance with Section 424(d) of the Code and lawful
applicable regulations.
2. PURPOSE OF THE PLAN. The purpose of the Plan is to provide Key
Employees of the Company and its Subsidiaries with greater incentive to serve
and promote the interests of the Company and its shareholders. The premise of
the Plan is that, if such Key Employees acquire a proprietary interest in the
business of the Company or increase such proprietary interest as they may
already hold, then the incentive of such Key Employees to work toward the
Company's continued success will be commensurately increased. Accordingly, the
Company may, from time to time during the effective period of the Plan, grant
to such Key Employees as may be selected to participate in the Plan options to
purchase Common Shares on the terms and subject to the conditions set forth in
the Plan.
3. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on
December 11, 1997, subject to approval by holders of a majority of the
outstanding shares of voting capital stock of the Company. In the event the
Plan is not so approved within twelve (12) months after the date the Plan is
adopted, the Plan and any options granted hereunder shall be null and void.
If, however, the Plan is so approved, subject to the provisions of Section 8,
no further shareholder approval shall be required with respect to the granting
of any options pursuant to the Plan.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee. The Committee shall consist of no fewer than three (3) members, who
shall be designated by the Board. Each member of the Committee shall be a
Non-Employee Director within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 or any amendment of or successor to such rule
as may be in effect from time to time. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum is present, or acts approved in writing by all of
the members, shall be acts of the Committee. Subject to the terms and
conditions of the Plan, the Committee shall have full and final authority in
its absolute discretion:
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<PAGE> 3
(a) To select the Key Employees to whom options may be
granted;
(b) To determine the number of Common Shares subject to any
option;
(c) To determine the time when options will be granted;
(d) To determine the option price of Common Shares subject
to an option;
(e) To determine the time when each option may be exercised;
(f) To determine at the time of grant of an option whether
and to what extent such option is an incentive stock option under
Section 422 of the Code;
(g) To determine whether stock appreciation rights shall be
made part of any option grant pursuant to Section 9 hereof, the
method of valuing the stock appreciation rights and whether the stock
appreciation rights may be exercised in lieu of or in addition to the
related option;
(h) To prescribe the form of the option agreements governing
the options which are granted under the Plan and to set the
provisions of such option agreements as the Committee may deem
necessary or desirable provided such provisions are not contrary to
the terms and conditions of either the Plan or, where the option is
an incentive stock option, Section 422 of the Code;
(i) To adopt, amend and rescind such rules and regulations
as, in the Committee's opinion, may be advisable in the
administration of the Plan; and
(j) To construe and interpret the Plan, the rules and
regulations and the instruments evidencing options granted under the
Plan and to make all other determinations deemed necessary or
advisable for the administration of the Plan.
Any decision made or action taken by the Committee in connection with the
administration, interpretation, and implementation of the Plan and of its
rules and regulations, shall, to the extent permitted by law, be conclusive
and binding upon all Optionees under the Plan and upon any person claiming
under or through such
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<PAGE> 4
an Optionee. Neither the Committee nor any of its members shall be liable for
any act taken by the Committee pursuant to the Plan. No member of the
Committee shall be liable for the act of any other member. If for any reason
any member of the Committee ceases to meet the requirements of Section 162(m)
of the Code or Rule 16b-3(c)(2) of the Securities Exchange Act of 1934, the
Board shall appoint new member(s) of the Committee in order to comply with
such requirements.
5. PERSONS ELIGIBLE FOR OPTIONS. Subject to the restrictions herein
contained, options may be granted from time to time in the discretion of the
Committee only to such Key Employees, as designated by the Committee, whose
initiative and efforts contribute or may be expected to contribute to the
continued growth and future success of the Company and/or its Subsidiaries.
Notwithstanding the preceding sentence, a Key Employee who renounces in
writing any right he may have to receive stock options under the Plan shall
not be eligible to receive any stock options under the Plan. No option shall
be granted to any Key Employee during any period of time when he is on leave
of absence. The Committee may grant more than one option, with or without
stock appreciation rights, to the same Key Employee.
6. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 9
concerning payment for stock appreciation rights in shares of Common Stock and
subject to the provisions of the next succeeding paragraph of this Section 6,
the aggregate number of shares of Common Stock for which options may be
granted under the Plan shall be 70,000 Common Shares. Either treasury or
authorized and unissued Common Shares, or both, in such amounts, within the
maximum limits of the Plan, as the Committee shall from time to time
determine, may be issued upon exercise of the options. All Common Shares which
are the subject of any lapsed, expired or terminated options may be made
available for reoffering pursuant to options granted under the Plan to any Key
Employee. If a stock appreciation right is granted in conjunction with an
option pursuant to Section 9, and if the option agreement with the Optionee
provides that exercise of the stock appreciation right shall be in lieu of
exercise of the options, and the stock appreciation right is thereafter
exercised in whole or in part, then the option or the portion thereof with
respect to which the stock appreciation right was exercised shall be deemed to
have been exercised and the Common Shares which otherwise would have been
issued upon exercise of such option, to the extent not used in payment for the
stock appreciation rights, may be made available for reoffering pursuant to
options granted under the Plan to any Key Employee.
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<PAGE> 5
In the event that subsequent to the date of adoption of the Plan by
the Board, the outstanding Common Shares are, as a result of a stock split,
stock dividend, combination or exchange of shares, exchange for other
securities, reclassification, reorganization, redesignation, merger,
consolidation, recapitalization, spin-off, split-off, split-up or other such
change (including, without limitation, any transaction described in Section
424(a) of the Code) or a special dividend or other distribution to the
Company's shareholders, increased or decreased or changed into or exchanged
for a different number or kind of shares of stock or other securities of the
Company, then (i) there shall automatically be substituted for each Common
Share subject to an unexercised option granted under the Plan and each Common
Share available for additional grants of options under the Plan the number and
kind of shares of stock or other securities into which each outstanding Common
Share shall be exchanged, (ii) the option price per Common Share or unit of
securities shall be increased or decreased proportionately so that the
aggregate purchase price for the securities subject to the option shall remain
the same as immediately prior to such event, and (iii) the Committee shall
make such other adjustments to the securities subject to options, the
provisions of the Plan, and option agreements as may be appropriate, equitable
and in compliance with the provisions of Section 424(a) of the Code to the
extent applicable and any such adjustment shall be final, binding and
conclusive as to each Optionee. Any such adjustment may, in the discretion of
the Committee, provide for the elimination of fractional shares.
Notwithstanding the foregoing provisions of this Section 6, no increase,
decrease or change in the Common Shares shall reduce the option price to a
price less than the minimum price per share at which Common Shares may be
issued without first offering such shares to the current holders of Common
Shares in accordance with the provisions of the Company's Articles of
Incorporation in effect at the time of such increase, decrease or change in
the Common Shares.
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<PAGE> 6
7. OPTION PROVISIONS.
(a) Option Price. The option price per share of Common Stock
which is the subject of an incentive stock option under the Plan shall be
determined by the Committee at the time of grant but shall not be less than
one hundred percent (100%) of the fair market value of a Common Share on the
date the option is granted; provided, however, that if a Key Employee to whom
an incentive stock option is granted is at the time of the grant a Substantial
Shareholder, the option price per Common Share shall be determined by the
Committee but shall never be less than one hundred ten percent (110%) of the
fair market value of a Common Share on the date the option is granted. The
option price per Common Share under each option granted pursuant to the Plan
which is not an incentive stock option shall be determined by the Committee at
the time of grant and may be above or below the fair market value of a Common
Share on the date the option is granted. Such fair market value shall be
determined in accordance with procedures to be established by the Committee.
The date on which the Committee approves the granting of an option shall be
deemed for all purposes hereunder the date on which the option is granted.
Notwithstanding the foregoing, no option shall be granted at an option price
less than the minimum price per share at which Common Shares may be issued
without first offering such shares to the current holders of Common Shares in
accordance with the provisions of the Company's Articles of Incorporation in
effect as of the date on which the option is granted.
(b) Period of Option. The Committee shall determine when
each option is to expire but no option shall be exercisable after ten (10)
years have elapsed from the date upon which the option is granted; provided,
however, that no incentive stock option granted to a person who is a
Substantial Shareholder at the time of the grant of such option shall be
exercisable after five (5) years have elapsed from the date upon which the
option is granted.
(c) Limitation on Exercise and Transfer of Option. Except as
otherwise provided in the event of an Optionee's death, only the Optionee may
exercise an option, provided that a guardian or other legal representative who
has been duly appointed for such Optionee may exercise an option on behalf of
the Optionee. No option granted hereunder shall be transferable other than by
the Last Will and Testament of the Optionee or. if the Optionee dies
intestate, by the applicable laws of descent and distribution. No option
granted hereunder may be pledged or hypothecated, nor shall any such option be
subject to execution, attachment or similar process.
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<PAGE> 7
(d) Conditions Governing Exercise of Option. The Committee
may, in its absolute discretion, either require that, prior to the exercise of
any option granted hereunder, the Optionee shall have been an employee for a
specified period of time after the date such option was granted, or make any
option granted hereunder immediately exercisable. Each option shall be subject
to such additional restrictions or conditions with respect to the right to
exercise and the time and method of exercise as shall be prescribed by the
Committee. Upon satisfaction of any such conditions, the option may be
exercised in whole or in part at any time during the option period, but this
right of exercise shall be limited to whole shares, unless the Committee shall
otherwise provide. Options shall be exercised by the Optionee giving written
notice to the Company of the Optionee's exercise of the option accompanied by
full payment of the purchase price either in cash or, with the consent of the
Committee, in whole or in part in Common Shares having a fair market value on
the date the option is exercised equal to that portion of the purchase price
for which payment in cash is not made. A dissolution or liquidation of the
Company or, unless the surviving corporation assumes said options, a merger or
consolidation in which the Company is not the surviving corporation, shall
cause each outstanding option to terminate, provided that during the option
period each Optionee shall have the right during the period prescribed in the
option agreement prior to such dissolution or liquidation, or merger or
consolidation in which the Company is not the surviving corporation, to
exercise his option in whole or in part.
(e) Termination of Employment, Etc. If an Optionee ceases to
be an employee of the Company and all Subsidiaries, his option shall, unless
otherwise provided in the option agreement between the Optionee and the
Company, terminate on the date he ceases to be so employed and neither he nor
any other person shall have any rights after the date he ceases to be so
employed to exercise all or any part of the option. An Optionee's employment
shall not be deemed to have terminated while he is on a military, sick or
other bona fide approved leave of absence from the Company or a Subsidiary as
such a leave of absence is described in Section 1.421-7(h) of the Federal
Income Tax Regulations or any lawful successor regulations thereto. If the
stock option is an incentive stock option, no option agreement shall
(i) permit any Optionee to exercise any incentive
stock option more than three (3) months after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if the reason for the Optionee's
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<PAGE> 8
cessation of employment was other than his death or his
Disability; or
(ii) permit any Optionee to exercise any incentive
stock option more than one (1) year after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if the reason for the Optionee's cessation of
employment was the Optionee's Disability; or
(iii) permit any person to exercise any incentive
stock option more than one (1) year after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if either (A) the reason for the Optionee's
cessation of employment was his death or (B) the Optionee
died within three (3) months after ceasing to be employed by
the Company and all Subsidiaries.
If any option is by the terms of the option agreement exercisable following
the Optionee's death, then such option shall be exercisable by the Optionee's
estate, or the person designated in the Optionee's Last Will and Testament, or
the person to whom the option was transferred by the applicable laws of
descent and distribution.
(f) Limitations on Grant of Incentive Stock Options. During
the calendar year in which any incentive stock options granted under the Plan
first become exercisable by any Optionee, the aggregate fair market value of
the Common Shares which are subject to such incentive stock options
(determined as of the date the incentive stock options were granted) shall not
exceed the sum of One Hundred Thousand Dollars ($100,000.00). Options which
are not designated as incentive stock options shall not be subject to the
limitation described in the preceding sentence and shall not be counted when
applying such limitation.
(g) Prohibition of Alternative Options. It is intended that
Key Employees may be granted, simultaneously or from time to time, "incentive
stock options" under Section 422 of the Code, or other stock options, but no
Key Employees shall be granted alternative rights in incentive stock options
and other stock options so as to prevent options granted as incentive stock
options under the Plan from qualifying as such within the meaning of Section
422 of the Code.
(h) Waiver by Committee of Conditions Governing Exercise of
Option. The Committee may, in its discretion, waive any restrictions or
conditions set forth in an option agreement
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<PAGE> 9
concerning an Optionee's right to exercise any option and/or the time and
method of exercise.
8. AMENDMENTS TO THE PLAN. The Committee is authorized to interpret
the Plan and from time to time adopt any rules and regulations for carrying
out the Plan that it may deem advisable. Subject to the approval of the Board,
the Committee may at any time amend, modify, suspend or terminate the Plan. In
no event, however, without the approval of the Company's shareholders, shall
any action of the Committee or the Board result in:
(a) Amending, modifying or altering the eligibility
requirements provided in Section 5 hereof;
(b) Increasing or decreasing, except as provided in Section
6 hereof, the maximum number of shares for which options may be
granted;
(c) Decreasing the minimum option price per share at which
options may be granted under the Plan, as provided in Section 7(a)
hereof;
(d) Extending either the maximum period during which an
option is exercisable as provided in Section 7(b) hereof or the date
on which the Plan shall terminate as provided in Section 12 hereof;
(e) Changing the requirements relating to the Committee; or
(f) Making any other change which would cause any option
granted under the Plan as an incentive stock option not to qualify as
an incentive stock option within the meaning of Section 422 of the
Code; except as necessary to conform the Plan and the option
agreements to changes in the Code or other governing law.
9. STOCK APPRECIATION RIGHTS. The Committee may provide, at the time
of the grant of a stock option and upon such terms and conditions as it deems
appropriate, that an Optionee shall have the right with respect to all or a
portion of the options granted to him to elect to surrender such options in
exchange for the consideration set forth in this Section 9 in lieu of
exercising such options. Alternatively, the Committee may provide, at the time
of the grant of a stock option and upon such terms and conditions as it deems
appropriate, that an Optionee shall have the right with respect to all or a
portion of the options granted to him to receive the consideration set forth
in this Section 9
9
<PAGE> 10
upon exercising such options in addition to any Shares of Common Stock
purchased upon exercise thereof. Stock appreciation rights must be
specifically granted by the Committee; provided, however, the Committee shall
have no authority to grant stock appreciation rights except in connection with
the grant of a stock option pursuant to the Plan, and no Optionee shall be
entitled to such rights solely as a result of the grant of an option to him.
Stock appreciation rights, if granted, may be exercised either with respect to
all or a portion of the option to which they relate. Stock appreciation rights
shall not be transferable separate from the option with respect to which they
were granted and shall be subject to all of the restrictions on transfer
applicable to the said options. Stock appreciation rights shall be exercisable
only at such times and by such persons as are specified in the option
agreement governing the stock option with respect to which the stock
appreciation rights were granted. A stock appreciation right shall provide
that an Optionee shall have the right to receive a percentage, not greater
than One Hundred Percent (100%), of the excess over the option price, if any,
of the fair market value of the Common Shares covered by the option, as
determined by the Committee as of the date of exercise of the stock
appreciation right, in the manner provided for herein. Such amount shall be
payable in one or more of the following manners, as shall be determined by the
Committee;
(a) in cash;
(b) in Common Shares having a fair market value equal to
such amount; or
(c) in a combination of cash and Common Shares.
If payment is made in whole or in part in Common Shares, such payment shall
thereby reduce the number of shares available for the grant of options under
this Plan.
In no event may any Optionee exercise any stock appreciation rights
granted hereunder unless such Optionee is then permitted to exercise the
option or the portion thereof with respect to which such stock appreciation
rights relate. If the option agreement with the Optionee provides that
exercise of the stock appreciation right shall be in lieu of exercise of the
option, then (i) upon the exercise of any stock appreciation rights, the
option or that portion thereof to which the stock appreciation rights relate
shall be cancelled, and (ii) upon the exercise of the option or that portion
thereof to which the stock appreciation rights relate, the stock appreciation
rights shall be cancelled, and the option agreement governing such option
shall be deemed amended as
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<PAGE> 11
appropriate without any further action by the Committee or the Optionee. If
the option agreement with the Optionee provides that exercise of the stock
appreciation right shall be in addition to exercise of the option, then (i)
upon the exercise of any stock appreciation rights, the option or that portion
thereof to which the stock appreciation rights relate shall be deemed
exercised and (ii) upon the exercise of the option, the stock appreciation
rights corresponding thereto shall be deemed exercised to the extent the
option is exercised. The terms of any stock appreciation rights granted
hereunder shall be incorporated into the option agreement which governs the
option with respect to which the stock appreciation rights are granted, and
shall be such terms as the Committee shall prescribe which are not
inconsistent with this Plan. The granting of an option or stock appreciation
right shall impose no obligation upon the Optionee to exercise such option or
right. The Company's obligation to satisfy stock appreciation rights shall not
be funded or secured in any manner.
10. INVESTMENT REPRESENTATION, APPROVALS AND LISTING. The Committee
may condition its grant of any option hereunder upon receipt of an investment
representation from the Optionee which shall be substantially similar to the
following:
"Optionee agrees that any Class A Common Shares of Hickok
Incorporated which he may acquire by virtue of the exercise of this
option shall be acquired for investment purposes only and not with a
view to distribution or resale; provided, however, that this
restriction shall become inoperative in the event the Class A Common
Shares of Hickok Incorporated which are subject to this option shall
be registered under the Securities Act of 1933, as amended, or in the
event Hickok Incorporated is otherwise satisfied that the offer or
sale of the Class A Common Shares of Hickok Incorporated which are
subject to this option may lawfully be made without registration
under the Securities Act of 1933, as amended."
The Company shall not be required to issue any certificates for Class A Common
Shares upon the exercise of an option or a stock appreciation right granted
under the Plan prior to (i) obtaining any approval from any governmental
agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable, (ii) the admission of such shares to listing on any
national securities exchange on which the Common Shares may be listed, (iii)
completion of any registration or other qualification of the Common Shares
under any state or federal law or ruling or regulations of any governmental
body which the Committee shall, in its sole discretion, determine to be
necessary
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<PAGE> 12
or advisable, or the determination by the Committee, in its sole discretion,
that any registration or other qualification of the Common Shares is not
necessary or advisable, and (iv) obtaining an investment representation from
the Optionee in the form set forth above or in such other form as the
Committee, in its sole discretion, shall determine to be adequate.
11. GENERAL PROVISIONS.
(a) Option Agreements Need Not Be Identical. The form and
substance of option agreements and grants of stock appreciation rights,
whether granted at the same or different times, need not be identical.
(b) No Right To Be Employed, Etc. Nothing in the Plan or in
any option agreement shall confer upon any Optionee any right to continue in
the employ of the Company or a Subsidiary, or to serve as a member of the
Board, or to be entitled to receive any remuneration or benefits not set forth
in the Plan or such option agreement, or to interfere with or limit either the
right of the Company or a Subsidiary to terminate his employment at any time
or the right of the shareholders of the Company to remove him as a member of
the Board with or without cause.
(c) Optionee Does Not Have Rights Of Shareholder. Nothing
contained in the Plan or in any option agreement shall be construed as
entitling any Optionee to any rights of a shareholder as a result of the grant
of an option until such time as Common Shares are actually issued to such
Optionee pursuant to the exercise of an option or stock appreciation right.
(d) Successors In Interest. The Plan shall be binding upon
the successors and assigns of the Company.
(e) No Liability Upon Distribution Of Shares. The liability
of the Company under the Plan and any distribution of Common Shares made
hereunder is limited to the obligations set forth herein with respect to such
distribution and no term or provision of the Plan shall be construed to impose
any liability on the Company or the Committee in favor of any person with
respect to any loss, cost or expense which the person may incur in connection
with or arising out of any transaction in connection with the Plan.
(f) Use Of Proceeds. The cash proceeds received by the
Company from the issuance of Common Shares pursuant to the Plan will be used
for general corporate purposes.
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<PAGE> 13
(g) Expenses. The expenses of administering the Plan shall
be borne by the Company.
(h) Captions. The captions and section numbers appearing in
the Plan are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of the Plan.
(i) Number. The use of the singular or plural herein shall
not be restrictive as to number and shall be interpreted in all cases as the
context may require.
(j) Gender. The use of the feminine, masculine or neuter
pronoun shall not be restrictive as to gender and shall be interpreted in all
cases as the context may require.
12. TERMINATION OF THE PLAN. The Plan shall terminate on December 11,
2007, and thereafter no options shall be granted under the Plan. All options
outstanding at the time of termination of the Plan shall continue in full
force and effect according to the terms of the option agreements governing
such options and the terms and conditions of the Plan.
13. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Ohio and any applicable federal law.
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<PAGE> 1
Exhibit 4.5
HICKOK INCORPORATED
1995 OUTSIDE DIRECTORS STOCK OPTION PLAN
ARTICLE 1. DEFINITIONS
Whenever used in the Plan, the following terms have the meanings
set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Change in Control" shall be deemed to have occurred upon:
(i) The acquisition of beneficial ownership of thirty
percent (30%) of the Company's Shares by a person or group of
persons under common control unless such acquisition is approved by
the Board; or
(ii) A change in the membership of the Board at any time
during any twelve (12) month period such that, following such
change, at least thirty percent (30%) of the members of the Board
were not members of the Board at the start of such twelve (12)
month period but only if the election of such new members of the
Board was not approved by at least three-quarters (3/4) of the
Directors who were either sitting at the beginning of such twelve
(12) month period or elected to the Board during such twelve (12)
month period with the approval of three-quarters (3/4) of the
Directors who were sitting at the beginning of such twelve (12)
month period.
(c) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(d) "Company" means Hickok Incorporated, an Ohio corporation, or
any successor thereto.
(e) "Director" means a member of the Board.
(f) "Disability" means a Participant's inability, due to a
physical or mental condition, to continue to serve as a member of the Board,
as determined by the Board pursuant to written certification of such
Disability from a physician acceptable to the Board.
(g) "Effective Date" means February 23, 1995, subject to
ratification by an affirmative vote of a majority of the voting capital stock
of the Company.
(h) "Exchange Act" means the Securities Exchange Act
<PAGE> 2
of 1934, as amended, or any successor thereto.
(i) "Fair Market Value" means (a) if the Shares are listed on a
nationally recognized stock exchange or the NASDAQ Stock Market, the closing
price of the Shares on the date the fair market value of the Shares is being
determined, or, if no sale has occurred on such date, on the most recent
preceding day on which there is a closing price of the Shares, or (b) in all
other circumstances, the value determined by the Board after obtaining an
appraisal by one or more independent appraisers meeting the requirements of
regulations issued under Section 170(a)(1) of the Code.
(j) "Option" means an option to purchase Shares granted under
Article 4 herein.
(k) "Option Agreement" means an agreement, in the form of
Exhibit A attached hereto, setting forth the terms and provisions applicable
to an Option.
(l) "Option Price" shall be equal to one hundred percent (100%)
of the Fair Market Value of a Share at the close of the date the Option is
granted.
(m) "Outside Director" means a Director who is not employed by
the Company or a Subsidiary.
(n) "Participant" means an Outside Director who has been
granted an Option.
(o) "Plan" means the Hickok Incorporated 1995 Outside Directors
Stock Option Plan.
(p) "Shares" means the Class A Common Shares, $1.00 par value,
of the Company.
(q) "Subsidiary" means any corporation, at least fifty percent
(50%) of the common stock of which is owned directly or indirectly by the
Company.
ARTICLE 2. ESTABLISHMENT, PURPOSE, AND DURATION
2.1 ESTABLISHMENT OF THE PLAN. The Company hereby establishes
the Plan as set forth herein.
2.2 PURPOSE OF THE PLAN. The purpose of the Plan is to provide
the Outside Directors with greater incentive to serve and promote the
interests of the Company and its shareholders. The premise of the Plan is
that, if such Outside Directors acquire a proprietary interest in the Company
or increase such proprietary interest as they may already hold, then the
incentive of such
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<PAGE> 3
Outside Directors to work toward the Company's continued success will be
commensurately increased. Accordingly, the Company will, from time to time
during the effective period of the Plan, grant to the Outside Directors
Options on the terms and subject to the conditions set forth in the Plan.
2.3 DURATION OF THE PLAN. The Plan shall commence on the
Effective Date and shall remain in effect until February 24, 1997.
ARTICLE 3. SHARES SUBJECT TO THE PLAN
3.1 NUMBER OF SHARES. The total number of Shares available for
grant under the Plan shall be Thirty Thousand (30,000). These Shares may be
either authorized but unissued, treasury Shares or reacquired Shares. The
grant of an Option shall reduce the Shares available for grant under the Plan
by the number of Shares subject to such Option. To the extent that an Option
is settled in cash rather than in Shares, the authorized Share pool shall be
reduced by the appropriate number of Shares represented by the cash settlement
of the Option, as determined by the Board (subject to the limitation set forth
in Section 3.2 herein).
3.2 LAPSED OPTIONS. If any Option granted under this Plan is
canceled, terminates, expires or lapses for any reason, any Shares subject to
such Option again shall be available for the grant of an Option under the
Plan. However, in the event that prior to the Option's cancellation,
termination, expiration, or lapse, the holder of the Option at any time
received one or more "benefits of ownership" pursuant to such Option (as
defined by the Securities and Exchange Commission, pursuant to any rule or
interpretation promulgated under Section 16 of the Exchange Act), the Shares
subject to such Option shall not be made available for regrant under the Plan.
3.3 ADJUSTMENTS IN AUTHORIZED SHARES. In the event of any
merger, reorganization, consolidation, recapitalization, separation,
liquidation, share split, share dividend, split-up, share combination, or
other change in the corporate structure of the Company, the Board, in its sole
discretion, shall make such adjustments as are necessary and appropriate in
the exercise prices, number of Shares issuable upon exercise and/or the class
of Shares issuable upon exercise of all then outstanding Options, to prevent
dilution or enlargement of rights of the holders of Options under the Plan;
and provided that the number of Shares attributable to any Option shall always
be a whole number.
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ARTICLE 4. GRANT OF OPTIONS
4.1 GRANT OF OPTIONS TO OUTSIDE DIRECTORS. On the Effective
Date each Outside Director shall be granted an Option to purchase One Thousand
(1,000) Shares at the Option Price. Each Outside Director first appointed or
elected to the Board after the Effective Date shall be granted an Option to
purchase One Thousand (1,000) Shares at the Option Price upon his or her
election or appointment to the Board. On each anniversary of the Effective
Date, through and including February 23, 1997, each Outside Director shall be
granted an Option to purchase One Thousand (1,000) Shares at the Option Price.
The terms of each such Option shall be set forth in an Option Agreement which
shall be executed by the Outside Director and the Company.
4.2 DURATION OF OPTIONS. Subject to the provisions contained
herein relating to earlier expiration, each Option shall expire on the tenth
(10th) anniversary date of its grant.
4.3 EXERCISE OF OPTIONS. Options granted under the Plan shall
be exercisable as follows:
Options shall be exercised by the delivery of a written notice
of exercise to the Company, setting forth the number of Shares with respect to
which the Option is to be exercised, accompanied by full payment for the
Shares.
4.4 PAYMENT. The Option Price upon exercise of any Option shall
be payable to the Company in full in cash or its equivalent. The Board also
may allow cashless exercises as permitted under Federal Reserve Board's
Regulation T, subject to applicable securities law restrictions, or by any
other means which the Board determines to be consistent with the Plan's
purpose and applicable law.
As soon as practicable after receipt of a written notification
of exercise and full payment, except in the case of a cashless exercise, the
Company shall deliver to the Participant, in the Participant's name, Share
certificates in an appropriate amount based upon the number of Shares
purchased under the Option(s).
4.5 RESTRICTIONS ON SHARE TRANSFERABILITY. The Board may impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
under the Plan as shall be required under applicable Federal securities laws,
under the requirements of any stock exchange or market upon which such Shares
are then listed and/or traded and under any blue sky or state securities laws
applicable to such Shares.
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4.6 CEASING TO BE A DIRECTOR DUE TO DEATH OR DISABILITY.
(a) DEATH. In the event a Participant ceases to be
a Director by reason of death, all vested Options held by the
Participant shall remain exercisable at any time prior to their
expiration date, or for one (1) year after the date of death,
whichever period is shorter, by such person or persons as shall have
been named as the Participant's beneficiary, or by such persons that
have acquired the Participant's rights under the Option by will or by
the laws of descent and distribution.
(b) DISABILITY. In the event a Participant ceases
to be a Director by reason of Disability, all vested Options held by
the Participant shall remain exercisable at any time prior to their
expiration date, or for one (1) year after the date that the Board
determines the definition of Disability to have been satisfied,
whichever period is shorter.
(c) DEATH AFTER CEASING TO BE A DIRECTOR. In the
event that a Participant ceases to be a Director by reason of
Disability, and within the exercise period following such termination
the Participant dies, then the remaining exercise period under
outstanding Options shall equal the longer of (i) one (1) year
following death; or (ii) the remaining portion of the exercise period
which was triggered by reason of the Director's Disability; provided,
however, the remaining exercise period shall in no event extend
beyond the expiration date of such Options. Such Options shall be
exercisable by such person or persons who shall have been named as
the Participant's beneficiary, or by such persons who have acquired
the Participant's rights under the Option by will or by the laws of
descent and distribution.
4.7 CEASING TO BE A DIRECTOR. If a Participant ceases to be
a Director for any reason, all Options held by the Participant which are not
vested as of the date he ceases to be a Director shall immediately be
forfeited to the Company.
Options which are vested as of the date a Participant ceases
to be a Director for any reason other than the reasons set forth in Section
4.6 may be exercised within the period beginning on the date the Participant
ceases to be a Director, and ending sixty (60) days after such date. In the
event the Participant dies within such sixty (60) day period, then any
outstanding Options may be exercised within twelve (12) months after the date
of such Participant's death by such person or persons who shall have been
named as such Participant's beneficiary or by such person who has acquired the
Participant's rights under the Options by will or by the laws of descent and
distribution; provided,
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however, the remaining exercise period shall in no event extend beyond the
expiration date of such Options.
4.8 NONTRANSFERABILITY OF OPTIONS. No Option may be sold,
transferred, pledged, assigned, or otherwise alienated or hypothecated by a
Participant or any other person, voluntarily or involuntarily, other than (i)
by will or by the laws of descent and distribution or (ii) pursuant to a
Qualified Domestic Relations Order as provided for in Section 206(d)(3)(B) of
the Employee Retirement Income Security Act of 1974, as amended. Further, a
Participant's rights under the Plan shall be exercisable during the
Participant's lifetime only by the Participant or the Participant's legal
representative.
ARTICLE 5. BENEFICIARY DESIGNATION
Each Participant may, from time to time, name any beneficiary or
beneficiaries (who may be named contingently or successively) who will succeed
to the Participant's rights hereunder in the event of the Participant's death.
Each such designation shall revoke all prior designations by the same
Participant, shall be in a form prescribed by the Company, and will be
effective only when filed by the Participant in writing with the Company
during the Participant's lifetime. In the absence of any such designation,
benefits remaining unpaid at the Participant's death shall be paid to the
Participant's estate.
The spouse of a married Participant domiciled in a community
property jurisdiction shall join in any designation of beneficiary or
beneficiaries other than the spouse.
ARTICLE 6. CHANGE IN CONTROL
Upon the occurrence of a Change in Control, unless otherwise
specifically prohibited by the terms of Section 11.5 herein:
(a) Any and all Options granted hereunder shall become
immediately exercisable; and
(b) Subject to Article 7 herein, the Board shall have the
authority to make any modifications to the Options as determined by the
Board to be appropriate before the effective date of the Change in
Control.
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ARTICLE 7. AMENDMENT, MODIFICATION, AND TERMINATION
7.1 AMENDMENT, MODIFICATION, AND TERMINATION. The Board may at
any time and from time to time, alter, amend, suspend or terminate the Plan in
whole or in part; provided, that the Plan shall not be amended more than once
every six (6) months, other than to conform it to changes in the Code, the
Employee Retirement Income Security Act of 1974, as amended, or the rules
thereunder; and provided, further that no amendment which requires shareholder
approval in order for the Plan to continue to comply with Rule 16b-3 under the
Exchange Act, including any successor to such Rule, shall be effective unless
such amendment shall be approved by the requisite vote of shareholders of the
Company entitled to vote thereon.
7.2 OPTIONS PREVIOUSLY GRANTED. No termination, amendment or
modification of the Plan shall adversely affect in any material way any Option
previously granted under the Plan, without the written consent of the
Participant holding such Option.
ARTICLE 8. WITHHOLDING
The Company shall have the power and the right to deduct and
withhold from any other compensation due the Participant from the Company, or
require a Participant to remit to the Company in such form as requested by the
Company, an amount sufficient to satisfy Federal, state, and local taxes
required by law to be withheld with respect to any taxable event arising from
or as a result of this Plan.
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ARTICLE 9. INDEMNIFICATION
Each person who is or shall have been a member of the Board
shall be indemnified and held harmless by the Company against and from any
loss, cost, liability, or expense that may be imposed upon or reasonably
incurred by such person in connection with or resulting from any claim,
action, suit, or proceeding to which such person may be a party or in which
such person may be involved by reason of any action taken or failure to act
under the Plan and against and from any and all amounts paid by such person in
settlement thereof, with the Company's approval or paid by such person in
satisfaction of any judgment in any such action, suit, or proceeding against
such person, provided such persons shall give the Company an opportunity, at
its own expense, to handle and defend the same before such person undertakes
to handle and defend it on such person's own behalf. The foregoing right of
indemnification shall not be exclusive of any other rights of indemnification
to which such persons may be entitled under the Company's Articles of
Incorporation or Code of Regulations, as a matter of law, or otherwise, or any
power that the Company may have to indemnify them or hold them harmless.
ARTICLE 10. SUCCESSORS
All obligations of the Company under the Plan with respect to
Options shall be binding on any successor to the company, whether the
existence of such successor is the result of a direct or indirect purchase,
merger, consolidation, or otherwise, of all or substantially all of the
business and/or assets of the Company.
ARTICLE 11. MISCELLANEOUS
11.1 NO RIGHT TO CONTINUE AS A DIRECTOR. Nothing in this Plan or
in any Option Agreement shall confer upon any Outside Director any right to
continue as a Director, or to be entitled to receive any remuneration or
benefits not set forth in the Plan or such Option Agreement, or to interfere
with or limit the right of the shareholders of the Company to remove him or
her as a Director, with or without cause.
11.2 GENDER AND NUMBER. Except where otherwise indicated by the
context, any masculine term used herein also shall include the feminine; the
plural shall include the singular and the singular shall include the plural.
11.3 SEVERABILITY. In the event any provision of the Plan shall
be held illegal or invalid for any reason, the illegality or invalidity shall
not affect the remaining parts of
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the Plan, and the Plan shall be construed and enforced as if the illegal or
invalid provision had not been included.
11.4 REQUIREMENTS OF LAW. The granting of Options and the
issuance of Shares under the Plan shall be subject to all applicable laws,
rules, and regulations, and to such approvals by any governmental agencies or
national securities exchanges as may be required. Notwithstanding any other
provision set forth in the Plan, if required by the then-current Section 16 of
the Exchange Act, any "derivative security" or "equity security" granted
pursuant to the Plan to any Outside Director may not be sold or transferred
for at least six (6) months after the date of grant of such Option. The terms
"equity security" and "derivative security" shall have the meanings ascribed
to them in the then-current Rule 16(a) under the Exchange Act.
11.5 SECURITIES LAW COMPLIANCE. Transactions under this Plan are
intended to comply with all applicable conditions of Rule 16b-3 or its
successors under the Exchange Act. To the extent any provision of the Plan or
action by the Committee fails to so comply, it shall be deemed null and void,
to the extent permitted by law and deemed advisable by the Committee.
11.6 GOVERNING LAW. To the extent not preempted by Federal law,
the Plan, and all agreements hereunder, shall be construed in accordance with
and governed by the laws of the State of Ohio.
11.7 TIME FOR TAKING ACTION. Any action that may be taken in
respect of the Plan within a certain number of days shall be taken within that
number of calendar days; provided, however, that if the last day for taking
any such action falls on a weekend or a holiday, the period during which such
action may be taken shall be extended until the next business day. If any
action in respect of the Plan is required to be taken on a day which falls on
a weekend or a holiday, such action shall be taken on the next business day.
11.8 NONQUALIFIED OPTIONS. All Options granted under the Plan
shall, for purposes of the federal income tax, be nonqualified stock options.
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Exhibit 4.6
HICKOK INCORPORATED
1995 KEY EMPLOYEES STOCK OPTION PLAN
Hickok Incorporated hereby adopts a stock option plan for the
benefit of certain persons and subject to the terms and provisions set forth
below.
1. DEFINITIONS. The following terms shall have the meanings set
forth below whenever used in this instrument:
(a) The word "Board" shall mean the Board of Directors of the
Company.
(b) The word "Code" shall mean the United States Internal
Revenue Code (Title 26 of the United States Code).
(c) The word "Committee" shall mean the Compensation Committee
appointed by the Board.
(d) The words "Common Shares" shall mean Class A Common Shares,
$1.00 par value, of the Company.
(e) The word "Company" shall mean Hickok Incorporated, an Ohio
corporation, and any successor thereto which shall maintain this Plan.
(f) The word "Disability" shall mean the Optionee's inability,
due to a physical or mental condition, to perform services for the
Company or any Subsidiary substantially consistent with past practice,
as determined by the Committee pursuant to written certification of
such Disability from a physician acceptable to the Committee.
(g) The words "Key Employee" shall mean any person who is a
high-level executive officer or other valuable managerial or technical
employee of either the Company or any Subsidiary and who does not own
beneficially ten percent (10%) or more of either the Class A Common
Shares or the Class B Common Shares of the Company.
(h) The word "Optionee" shall mean any Key Employee to whom a
stock option has been granted pursuant to this Plan.
(i) The word "Plan" shall mean this instrument, Hickok
<PAGE> 2
Incorporated 1995 Key Employees Stock Option Plan, as it is originally
adopted and as it may be amended hereafter.
(j) The word "Subsidiary" shall mean any corporation at least
50% of the common stock of which is owned directly or indirectly by the
Company.
(k) The words "Substantial Shareholder" shall mean any person
who would otherwise be a Key Employee except that such person owns more
than 10% of the total combined voting power of all classes of stock of
either the Company or any Subsidiary. Ownership shall be determined in
accordance with Section 424(d) of the Code and lawful applicable
regulations.
2. PURPOSE OF THE PLAN. The purpose of the Plan is to provide Key
Employees of the Company and its Subsidiaries with greater incentive to serve
and promote the interests of the Company and its shareholders. The premise of
the Plan is that, if such Key Employees acquire a proprietary interest in the
business of the Company or increase such proprietary interest as they may
already hold, then the incentive of such Key Employees to work toward the
Company's continued success will be commensurately increased. Accordingly, the
Company may, from time to time during the effective period of the Plan, grant
to such Key Employees as may be selected to participate in the Plan options to
purchase Common Shares on the terms and subject to the conditions set forth in
the Plan.
3. EFFECTIVE DATE OF THE PLAN. The Plan shall become effective on
December 7, 1994, subject to approval by holders of a majority of the
outstanding shares of voting capital stock of the Company. In the event the
Plan is not so approved within twelve (12) months after the date the Plan is
adopted, the Plan and any options granted hereunder shall be null and void.
If, however, the Plan is so approved, subject to the provisions of Section 8,
no further shareholder approval shall be required with respect to the granting
of any options pursuant to the Plan.
4. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Committee. The Committee shall consist of no fewer than three (3) members, who
shall be designated by the Board. Each member of the Committee shall be a
"disinterested person" within the meaning of Rule 16b-3 promulgated under the
Securities Exchange Act of 1934 or any amendment of or successor to such rule
as may be in effect from time to time. A majority of the Committee shall
constitute a quorum, and the acts of a majority of the members present at any
meeting at which a quorum
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is present, or acts approved in writing by all of the members, shall be acts
of the Committee. Subject to the terms and conditions of the Plan, the
Committee shall have full and final authority in its absolute discretion:
(a) To select the Key Employees to whom options may be
granted;
(b) To determine the number of Common Shares subject to any
option;
(c) To determine the time when options will be granted;
(d) To determine the option price of Common Shares subject
to an option;
(e) To determine the time when each option may be exercised;
(f) To determine at the time of grant of an option whether
and to what extent such option is an incentive stock option under
Section 422 of the Code;
(g) To determine whether stock appreciation rights shall be
made part of any option grant pursuant to Section 9 hereof, the
method of valuing the stock appreciation rights and whether the stock
appreciation rights may be exercised in lieu of or in addition to the
related option;
(h) To prescribe the form of the option agreements governing
the options which are granted under the Plan and to set the
provisions of such option agreements as the Committee may deem
necessary or desirable provided such provisions are not contrary to
the terms and conditions of either the Plan or, where the option is
an incentive stock option, Section 422 of the Code;
(i) To adopt, amend and rescind such rules and regulations
as, in the Committee's opinion, may be advisable in the
administration of the Plan; and
(j) To construe and interpret the Plan, the rules and
regulations and the instruments evidencing options granted under the
Plan and to make all other determinations deemed necessary or
advisable for the administration of the Plan.
Any decision made or action taken by the Committee in connection
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with the administration, interpretation, and implementation of the Plan and of
its rules and regulations, shall, to the extent permitted by law, be
conclusive and binding upon all Optionees under the Plan and upon any person
claiming under or through such an Optionee. Neither the Committee nor any of
its members shall be liable for any act taken by the Committee pursuant to the
Plan. No member of the Committee shall be liable for the act of any other
member. If for any reason any member of the Committee ceases to meet the
requirements of Section 162(m) of the Code or Rule 16b-3(c)(2) of the
Securities Exchange Act of 1934, the Board shall appoint new member(s) of the
Committee in order to comply with such requirements.
5. PERSONS ELIGIBLE FOR OPTIONS. Subject to the restrictions herein
contained, options may be granted from time to time in the discretion of the
Committee only to such Key Employees, as designated by the Committee, whose
initiative and efforts contribute or may be expected to contribute to the
continued growth and future success of the Company and/or its Subsidiaries.
Notwithstanding the preceding sentence, a Key Employee who renounces in
writing any right he may have to receive stock options under the Plan shall
not be eligible to receive any stock options under the Plan. No option shall
be granted to any Key Employee during any period of time when he is on leave
of absence. The Committee may grant more than one option, with or without
stock appreciation rights, to the same Key Employee.
6. SHARES SUBJECT TO THE PLAN. Subject to the provisions of Section 9
concerning payment for stock appreciation rights in shares of Common Stock and
subject to the provisions of the next succeeding paragraph of this Section 6,
the aggregate number of shares of Common Stock for which options may be
granted under the Plan shall be 35,000 Common Shares. Either treasury or
authorized and unissued Common Shares, or both, in such amounts, within the
maximum limits of the Plan, as the Committee shall from time to time
determine, may be issued upon exercise of the options. All Common Shares which
are the subject of any lapsed, expired or terminated options may be made
available for reoffering pursuant to options granted under the Plan to any Key
Employee. If a stock appreciation right is granted in conjunction with an
option pursuant to Section 9, and if the option agreement with the Optionee
provides that exercise of the stock appreciation right shall be in lieu of
exercise of the options, and the stock appreciation right is thereafter
exercised in whole or in part, then the option or the portion thereof with
respect to which the stock appreciation right was exercised shall be deemed to
have been exercised and the Common Shares which otherwise would have been
issued upon exercise of such option, to the extent not used
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<PAGE> 5
in payment for the stock appreciation rights, may be made available for
reoffering pursuant to options granted under the Plan to any Key Employee.
In the event that subsequent to the date of adoption of the Plan by
the Board, the outstanding Common Shares are, as a result of a stock split,
stock dividend, combination or exchange of shares, exchange for other
securities, reclassification, reorganization, redesignation, merger,
consolidation, recapitalization, spin-off, split-off, split-up or other such
change (including, without limitation, any transaction described in Section
424(a) of the Code) or a special dividend or other distribution to the
Company's shareholders, increased or decreased or changed into or exchanged
for a different number or kind of shares of stock or other securities of the
Company, then (i) there shall automatically be substituted for each Common
Share subject to an unexercised option granted under the Plan and each Common
Share available for additional grants of options under the Plan the number and
kind of shares of stock or other securities into which each outstanding Common
Share shall be exchanged, (ii) the option price per Common Share or unit of
securities shall be increased or decreased proportionately so that the
aggregate purchase price for the securities subject to the option shall remain
the same as immediately prior to such event, and (iii) the Committee shall
make such other adjustments to the securities subject to options, the
provisions of the Plan, and option agreements as may be appropriate, equitable
and in compliance with the provisions of Section 424(a) of the Code to the
extent applicable and any such adjustment shall be final, binding and
conclusive as to each Optionee. Any such adjustment may, in the discretion of
the Committee, provide for the elimination of fractional shares.
Notwithstanding the foregoing provisions of this Section 6, no increase,
decrease or change in the Common Shares shall reduce the option price to a
price less than the minimum price per share at which Common Shares may be
issued without first offering such shares to the current holders of Common
Shares in accordance with the provisions of the Company's Articles of
Incorporation in effect at the time of such increase, decrease or change in
the Common Shares.
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7. OPTION PROVISIONS.
(a) Option Price. The option price per share of Common Stock
which is the subject of an incentive stock option under the Plan shall be
determined by the Committee at the time of grant but shall not be less than
one hundred percent (100%) of the fair market value of a Common Share on the
date the option is granted; provided, however, that if a Key Employee to whom
an incentive stock option is granted is at the time of the grant a Substantial
Shareholder, the option price per Common Share shall be determined by the
Committee but shall never be less than one hundred ten percent (110%) of the
fair market value of a Common Share on the date the option is granted. The
option price per Common Share under each option granted pursuant to the Plan
which is not an incentive stock option shall be determined by the Committee at
the time of grant and may be above or below the fair market value of a Common
Share on the date the option is granted. Such fair market value shall be
determined in accordance with procedures to be established by the Committee.
The date on which the Committee approves the granting of an option shall be
deemed for all purposes hereunder the date on which the option is granted.
Notwithstanding the foregoing, no option shall be granted at an option price
less than the minimum price per share at which Common Shares may be issued
without first offering such shares to the current holders of Common Shares in
accordance with the provisions of the Company's Articles of Incorporation in
effect as of the date on which the option is granted.
(b) Period of Option. The Committee shall determine when
each option is to expire but no option shall be exercisable after ten (10)
years have elapsed from the date upon which the option is granted; provided,
however, that no incentive stock option granted to a person who is a
Substantial Shareholder at the time of the grant of such option shall be
exercisable after five (5) years have elapsed from the date upon which the
option is granted.
(c) Limitation on Exercise and Transfer of Option. Except as
otherwise provided in the event of an Optionee's death, only the Optionee may
exercise an option, provided that a guardian or other legal representative who
has been duly appointed for such Optionee may exercise an option on behalf of
the Optionee. No option granted hereunder shall be transferable other than by
the Last Will and Testament of the Optionee or. if the Optionee dies
intestate, by the applicable laws of descent and distribution. No option
granted hereunder may be pledged or hypothecated, nor shall any such option be
subject to execution, attachment or similar process.
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(d) Conditions Governing Exercise of Option. The Committee
may, in its absolute discretion, either require that, prior to the exercise of
any option granted hereunder, the Optionee shall have been an employee for a
specified period of time after the date such option was granted, or make any
option granted hereunder immediately exercisable. Each option shall be subject
to such additional restrictions or conditions with respect to the right to
exercise and the time and method of exercise as shall be prescribed by the
Committee. Upon satisfaction of any such conditions, the option may be
exercised in whole or in part at any time during the option period, but this
right of exercise shall be limited to whole shares, unless the Committee shall
otherwise provide. Options shall be exercised by the Optionee giving written
notice to the Company of the Optionee's exercise of the option accompanied by
full payment of the purchase price either in cash or, with the consent of the
Committee, in whole or in part in Common Shares having a fair market value on
the date the option is exercised equal to that portion of the purchase price
for which payment in cash is not made. A dissolution or liquidation of the
Company or, unless the surviving corporation assumes said options, a merger or
consolidation in which the Company is not the surviving corporation, shall
cause each outstanding option to terminate, provided that during the option
period each Optionee shall have the right during the period prescribed in the
option agreement prior to such dissolution or liquidation, or merger or
consolidation in which the Company is not the surviving corporation, to
exercise his option in whole or in part.
(e) Termination of Employment, Etc. If an Optionee ceases to
be an employee of the Company and all Subsidiaries, his option shall, unless
otherwise provided in the option agreement between the Optionee and the
Company, terminate on the date he ceases to be so employed and neither he nor
any other person shall have any rights after the date he ceases to be so
employed to exercise all or any part of the option. An Optionee's employment
shall not be deemed to have terminated while he is on a military, sick or
other bona fide approved leave of absence from the Company or a Subsidiary as
such a leave of absence is described in Section 1.421-7(h) of the Federal
Income Tax Regulations or any lawful successor regulations thereto. If the
stock option is an incentive stock option, no option agreement shall
(i) permit any Optionee to exercise any incentive
stock option more than three (3) months after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if the reason for the Optionee's
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cessation of employment was other than his death or his
Disability; or
(ii) permit any Optionee to exercise any incentive
stock option more than one (1) year after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if the reason for the Optionee's cessation of
employment was the Optionee's Disability; or
(iii) permit any person to exercise any incentive
stock option more than one (1) year after the date the
Optionee ceased to be employed by the Company and all
Subsidiaries if either (A) the reason for the Optionee's
cessation of employment was his death or (B) the Optionee
died within three (3) months after ceasing to be employed by
the Company and all Subsidiaries.
If any option is by the terms of the option agreement exercisable following
the Optionee's death, then such option shall be exercisable by the Optionee's
estate, or the person designated in the Optionee's Last Will and Testament, or
the person to whom the option was transferred by the applicable laws of
descent and distribution.
(f) Limitations on Grant of Incentive Stock Options. During
the calendar year in which any incentive stock options granted under the Plan
first become exercisable by any Optionee, the aggregate fair market value of
the Common Shares which are subject to such incentive stock options
(determined as of the date the incentive stock options were granted) shall not
exceed the sum of One Hundred Thousand Dollars ($100,000.00). Options which
are not designated as incentive stock options shall not be subject to the
limitation described in the preceding sentence and shall not be counted when
applying such limitation.
(g) Prohibition of Alternative Options. It is intended that
Key Employees may be granted, simultaneously or from time to time, "incentive
stock options" under Section 422 of the Code, or other stock options, but no
Key Employees shall be granted alternative rights in incentive stock options
and other stock options so as to prevent options granted as incentive stock
options under the Plan from qualifying as such within the meaning of Section
422 of the Code.
(h) Waiver by Committee of Conditions Governing Exercise of
Option. The Committee may, in its discretion, waive any restrictions or
conditions set forth in an option agreement
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concerning an Optionee's right to exercise any option and/or the time and
method of exercise.
8. AMENDMENTS TO THE PLAN. The Committee is authorized to interpret
the Plan and from time to time adopt any rules and regulations for carrying
out the Plan that it may deem advisable. Subject to the approval of the Board,
the Committee may at any time amend, modify, suspend or terminate the Plan. In
no event, however, without the approval of the Company's shareholders, shall
any action of the Committee or the Board result in:
(a) Amending, modifying or altering the eligibility
requirements provided in Section 5 hereof;
(b) Increasing or decreasing, except as provided in Section
6 hereof, the maximum number of shares for which options may be
granted;
(c) Decreasing the minimum option price per share at which
options may be granted under the Plan, as provided in Section 7(a)
hereof;
(d) Extending either the maximum period during which an
option is exercisable as provided in Section 7(b) hereof or the date
on which the Plan shall terminate as provided in Section 12 hereof;
(e) Changing the requirements relating to the Committee; or
(f) Making any other change which would cause any option
granted under the Plan as an incentive stock option not to qualify as
an incentive stock option within the meaning of Section 422 of the
Code;
except as necessary to conform the Plan and the option agreements to changes
in the Code or other governing law.
9. STOCK APPRECIATION RIGHTS. The Committee may provide, at the time
of the grant of a stock option and upon such terms and conditions as it deems
appropriate, that an Optionee shall have the right with respect to all or a
portion of the options granted to him to elect to surrender such options in
exchange for the consideration set forth in this Section 9 in lieu of
exercising such options. Alternatively, the Committee may provide, at the time
of the grant of a stock option and upon such terms and conditions as it deems
appropriate, that an Optionee shall have the right with respect to all or a
portion of the options granted
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to him to receive the consideration set forth in this Section 9 upon
exercising such options in addition to any Shares of Common Stock purchased
upon exercise thereof. Stock appreciation rights must be specifically granted
by the Committee; provided, however, the Committee shall have no authority to
grant stock appreciation rights except in connection with the grant of a stock
option pursuant to the Plan, and no Optionee shall be entitled to such rights
solely as a result of the grant of an option to him. Stock appreciation
rights, if granted, may be exercised either with respect to all or a portion
of the option to which they relate. Stock appreciation rights shall not be
transferable separate from the option with respect to which they were granted
and shall be subject to all of the restrictions on transfer applicable to the
said options. Stock appreciation rights shall be exercisable only at such
times and by such persons as are specified in the option agreement governing
the stock option with respect to which the stock appreciation rights were
granted. A stock appreciation right shall provide that an Optionee shall have
the right to receive a percentage, not greater than One Hundred Percent
(100%), of the excess over the option price, if any, of the fair market value
of the Common Shares covered by the option, as determined by the Committee as
of the date of exercise of the stock appreciation right, in the manner
provided for herein. Such amount shall be payable in one or more of the
following manners, as shall be determined by the Committee;
(a) in cash;
(b) in Common Shares having a fair market value equal to
such amount; or
(c) in a combination of cash and Common Shares.
If payment is made in whole or in part in Common Shares, such payment shall
thereby reduce the number of shares available for the grant of options under
this Plan.
In no event may any Optionee exercise any stock appreciation rights
granted hereunder unless such Optionee is then permitted to exercise the
option or the portion thereof with respect to which such stock appreciation
rights relate. If the option agreement with the Optionee provides that
exercise of the stock appreciation right shall be in lieu of exercise of the
option, then (i) upon the exercise of any stock appreciation rights, the
option or that portion thereof to which the stock appreciation rights relate
shall be cancelled, and (ii) upon the exercise of the option or that portion
thereof to which the stock appreciation rights relate, the stock appreciation
rights shall be cancelled, and the
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option agreement governing such option shall be deemed amended as appropriate
without any further action by the Committee or the Optionee. If the option
agreement with the Optionee provides that exercise of the stock appreciation
right shall be in addition to exercise of the option, then (i) upon the
exercise of any stock appreciation rights, the option or that portion thereof
to which the stock appreciation rights relate shall be deemed exercised and
(ii) upon the exercise of the option, the stock appreciation rights
corresponding thereto shall be deemed exercised to the extent the option is
exercised. The terms of any stock appreciation rights granted hereunder shall
be incorporated into the option agreement which governs the option with
respect to which the stock appreciation rights are granted, and shall be such
terms as the Committee shall prescribe which are not inconsistent with this
Plan. The granting of an option or stock appreciation right shall impose no
obligation upon the Optionee to exercise such option or right. The Company's
obligation to satisfy stock appreciation rights shall not be funded or secured
in any manner.
10. INVESTMENT REPRESENTATION, APPROVALS AND LISTING. The Committee
may condition its grant of any option hereunder upon receipt of an investment
representation from the Optionee which shall be substantially similar to the
following:
"Optionee agrees that any Class A Common Shares of Hickok
Incorporated which he may acquire by virtue of the exercise of this
option shall be acquired for investment purposes only and not with a
view to distribution or resale; provided, however, that this
restriction shall become inoperative in the event the Class A Common
Shares of Hickok Incorporated which are subject to this option shall
be registered under the Securities Act of 1933, as amended, or in the
event Hickok Incorporated is otherwise satisfied that the offer or
sale of the Class A Common Shares of Hickok Incorporated which are
subject to this option may lawfully be made without registration
under the Securities Act of 1933, as amended."
The Company shall not be required to issue any certificates for Class A Common
Shares upon the exercise of an option or a stock appreciation right granted
under the Plan prior to (i) obtaining any approval from any governmental
agency which the Committee shall, in its sole discretion, determine to be
necessary or advisable, (ii) the admission of such shares to listing on any
national securities exchange on which the Common Shares may be listed, (iii)
completion of any registration or other qualification of the Common Shares
under any state or federal law or ruling or regulations of any governmental
body which the
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Committee shall, in its sole discretion, determine to be necessary or
advisable, or the determination by the Committee, in its sole discretion, that
any registration or other qualification of the Common Shares is not necessary
or advisable, and (iv) obtaining an investment representation from the
Optionee in the form set forth above or in such other form as the Committee,
in its sole discretion, shall determine to be adequate.
11. GENERAL PROVISIONS.
(a) Option Agreements Need Not Be Identical. The form and
substance of option agreements and grants of stock appreciation rights,
whether granted at the same or different times, need not be identical.
(b) No Right To Be Employed, Etc. Nothing in the Plan or in
any option agreement shall confer upon any Optionee any right to continue in
the employ of the Company or a Subsidiary, or to serve as a member of the
Board, or to be entitled to receive any remuneration or benefits not set forth
in the Plan or such option agreement, or to interfere with or limit either the
right of the Company or a Subsidiary to terminate his employment at any time
or the right of the shareholders of the Company to remove him as a member of
the Board with or without cause.
(c) Optionee Does Not Have Rights Of Shareholder. Nothing
contained in the Plan or in any option agreement shall be construed as
entitling any Optionee to any rights of a shareholder as a result of the grant
of an option until such time as Common Shares are actually issued to such
Optionee pursuant to the exercise of an option or stock appreciation right.
(d) Successors In Interest. The Plan shall be binding upon
the successors and assigns of the Company.
(e) No Liability Upon Distribution Of Shares. The liability
of the Company under the Plan and any distribution of Common Shares made
hereunder is limited to the obligations set forth herein with respect to such
distribution and no term or provision of the Plan shall be construed to impose
any liability on the Company or the Committee in favor of any person with
respect to any loss, cost or expense which the person may incur in connection
with or arising out of any transaction in connection with the Plan.
(f) Use Of Proceeds. The cash proceeds received by the
Company from the issuance of Common Shares pursuant to the
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Plan will be used for general corporate purposes.
(g) Expenses. The expenses of administering the Plan shall
be borne by the Company.
(h) Captions. The captions and section numbers appearing in
the Plan are inserted only as a matter of convenience. They do not define,
limit, construe or describe the scope or intent of the provisions of the Plan.
(i) Number. The use of the singular or plural herein shall
not be restrictive as to number and shall be interpreted in all cases as the
context may require.
(j) Gender. The use of the feminine, masculine or neuter
pronoun shall not be restrictive as to gender and shall be interpreted in all
cases as the context may require.
12. TERMINATION OF THE PLAN. The Plan shall terminate on December 7,
2004, and thereafter no options shall be granted under the Plan. All options
outstanding at the time of termination of the Plan shall continue in full
force and effect according to the terms of the option agreements governing
such options and the terms and conditions of the Plan.
13. GOVERNING LAW. The Plan shall be governed by and construed in
accordance with the laws of the State of Ohio and any applicable federal law.
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Exhibit 5.1
[CALFEE, HALTER & GRISWOLD LLP LETTERHEAD]
September 16, 1998
Hickok Incorporated
10514 Dupont Avenue
Cleveland, Ohio 44108
We are acting as counsel for Hickok Incorporated, an Ohio
corporation (the "Company"), with respect to the 191,000 of the Company's
Class A Common Shares, par value $1.00 per share (the "Plan Shares"), to be
offered and sold from time to time pursuant to the Company's 1997 Outside
Directors Stock Option Plan, 1997 Key Employees Stock Option Plan, 1995
Outside Directors Stock Option Plan and 1995 Key Employees Stock Option Plan
(collectively, the "Plans"). As counsel for the Company, we have assisted in
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed by the Company with the Securities and Exchange
Commission to effect the registration of the Plan Shares under the Securities
Act of 1933, as amended.
We have examined such documents, records and matters of law
as we have deemed necessary for purposes of this opinion, and based thereon we
are of the opinion that the Plan Shares to be offered and sold from time to
time in the manner contemplated by the Plans and the Registration Statement
will be duly authorized, validly issued, fully paid and nonassessable.
We are attorneys licensed to practice law in the State of
Ohio. The opinion expressed herein is limited solely to the laws of the State
of Ohio and we express no opinion under the laws of any other jurisdiction.
This opinion is intended solely for your use in connection
with the filing of the Registration Statement with respect to the Plan Shares,
and may not be reproduced, filed publicly or relied upon by any other person
for any purpose without the express written consent of the undersigned.
We hereby consent to the filing of this opinion as Exhibit
5.1 to the Registration Statement.
Respectfully submitted,
/s/ Calfee, Halter & Griswold LLP
CALFEE, HALTER & GRISWOLD LLP
<PAGE> 1
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the registration of 191,000 Class A Common Shares, of
our report dated November 25, 1997, with respect to the consolidated financial
statements of Hickok Incorporated included in its Annual Report (Form 10-K)
for the year ended September 30, 1997, filed with the Securities and Exchange
Commission.
/s/ Meaden & Moore, Ltd.
MEADEN & MOORE, LTD.
Cleveland, Ohio
September 15, 1998
